Possibilities under EU law to establish a platform for the exchange of information between the EU and the Member States to address the problem of abusive or politically motivated Interpol notices against EU citizens
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Abstract
This paper, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Civil Liberties, Justice and Home Affairs, analyses Interpol’s system of Red Notices and the EU-based mechanisms to safeguard citizens against political abuse of Interpol’s system. Recent reforms of Interpol are significant but many problems remain unaddressed. The paper discusses existing and possible platforms, including the European Search Portal, as ways to ensure a more effective enforcement of EU-based legal limits and fundamental rights on a European level.
AUTHOR Rasmus H. Wandall, PhD, Research fellow, University of Lund. Manuscript completed in February 2022 © European Union, 2022
EXECUTIVE SUMMARY
Background
In 2014, the European Parliament issued a resolution with recommendations on the matter (2013/2109(INL)) and since then, it has followed up with debates and further questions, most recently in 2021 concerning the candidacy for the Presidency of Interpol. In 2019, the DROI Committee of the European Parliament published a commissioned study on the misuse of Interpol Red Notices, putting forward a number of recommendations for Interpol reform. Also in 2019, the LIBE Committee and subsequently the European Parliament passed a resolution responding to the Russian Federation’s targeting of Lithuanian judges, prosecutors and investigators, and calling on EU Member States and Interpol to desist from assisting in the targeting (2019/2938(RSP)).
The Parliamentary Assembly of the Council of Europe issued a resolution in 2017 (2161/ 2017) and again in 2019 (2315/2019) both with recommendations for Interpol reform and with recommendations for its Member States. Numerous articles and civil society organisations continue to document abuse and express concern over the exploitation of Interpol and the further need for reform. The leadership of Interpol and the composition of it have attracted considerable attention in this regard.
On the European level, the Court of Justice of the European Union has in recent case-law addressed Member States’ obligations under EU law to limit the use of arrest warrants and extraditions to third countries – also in regard to Red Notices. On this basis, the study analyses recent reform efforts of Interpol with a view to politically motivated Red Notice requests and the possibilities under EU law to establish a platform for the exchange of information between the EU and the Member States to address this problem for EU citizens.
Aim
The aim of the study is to 1) describe Interpol, its organisational setup, its financial foundation, and the practice of the notice system, 2) discuss the recent reforms of Interpol, 3) give an overview of the recent case-law development of the Court of Justice of the European Union, and identify what information is necessary to share for Member States to ensure EU citizens against politically motivated Red Notices, and 4) discuss possible platforms on which EU Member States and the EU may exchange information to address the problem. Finally, the aim is to 5) give recommendations for possible action.
Key findings : The Interpol Organisation
A Red Notice is a request to have a person arrested. It is issued through Interpol’s global notice system. Interpol is governed by its General Assembly made up by its 194 members. The President and the Executive Committee Members are elected. A General Secretariat manages the daily operations. Financially, the largest donors to the Interpol are the European Union, the Interpol Foundation for a Safer World (fully funded by the United Arab Emirates), the United States of America, Canada, and Norway.
The General Secretariat coordinates and manages all Interpol’s activities. National Central Bureaus in member countries operate within domestic authorities and carry out part of Interpol’s work. The National Central Bureaus are managed by staff of the domestic authorities.
Red Notice requests are communicated by the National Central Bureau to the General Secretariat with a view to circulation worldwide. A task force in the General Secretariat reviews the requests prior to circulation. If approved, the notice is circulated and possibly publicised. Diffusion orders to arrest are not formal notices and are sent directly to other members of Interpol.
In 2020, Interpol issued 11,094 Red Notices and had more than 66,000 Red Notices in circulation. There has been a significant increase in numbers of Red Notices and Diffusion Orders since 2010.
Within the General Secretariat, a Secretary granted independence is appointed to support the Interpol Commission of the Control of Files. The commission handles individual complaints and performs both a supervisory and advisory role.
Interpol Rules governing the system of notices
Interpol activities, including the processing of Red Notices, must respect Interpol rules and must be consistent with the laws of the jurisdictions engaged by the acts in question.
Interpol is obliged not to assist or aid members that act in violation of international human rights law, and to respect the principle of neutrality stipulated in art. 3 in its Constitution.
The rule forbids the organisation to undertake any intervention or activity of a political, military, religious or racial character. Furthermore, a Red Notice must concern a serious ordinary-law crime and must pass a specific penalty threshold for the notice to be considered.
The National Central Bureaus and subsequently the General Secretariat’s task force review requests to ensure that all thresholds and rules are respected.
Interpol rules on data protection apply alongside overlapping regional and national data protection rules. In the area of the European Union, the Law Enforcement Directive, EU Fundamental Rights laws, and the case law of the Court of Justice of the European Union apply equally in every Member State. Since 2015, Interpol appointed a Data Protection Officer overseeing and developing data protection practice and organisation of Interpol. Each National Central Bureau equally appoints data protection officers.
Recent reforms of the Interpol Red Notice system
Politically motivated Red Notices allow governments to persecute political and other opponents abroad with significant consequences for those affected.
Despite the rights-based limitation of Interpol’s mandate to communicate Red Notices, the risk of politically motivated Red Notices is real. Moreover, observing that democracies are under pressure and that many countries have developed in an authoritarian direction, there is a strong argument that the risk has increased.
Interpol has carried out significant reforms since 2013. The review of Red Notice requests has been strengthened and a complaint mechanism under the Commission of the Control of Files has been enforced. Interpol has assigned a Data Protection Officer and implemented learning and knowledge sharing programmes to support the legal frameworks and good practices of all parts of the Interpol organisation.
Regardless, a number of legal tools continue to be lacking and there is a substandard transparency in the processing of Red Notices. Furthermore, more fundamental problems remain.
First, considering the increasing number of notices in circulation and considering the current setup, proper legal safeguards cannot be expected to be sufficiently enforced in the near future. Second, decentralised National Central Bureaus under the authority of domestic authorities represent a structural problem that is not sufficiently addressed through Interpol’s knowledge management organisation.
Third, the use of national databases to store and update Red Notices means that Interpol updates are ineffective on a global scale and leave inaccurate notice information in circulation on a significant level.
An EU-based platform for exchanging information
The Court of Justice of the EU has developed rights-based boundaries of its Member States’ use of arrest warrants – both in regard to extradition to Member States and to third countries.
The Council of the EU has subsequently affirmed initiatives to enforce these boundaries. Member States must consider fundamental rights as grounds for refusing arrest warrants and extraditions. Verifying that there is a real risk, the executing authority must find that the person in question is subjected to such real risk considering the specific circumstances of the case. If affirmative, a decision to extradite must be deferred. If the risk cannot be discounted, the authority must reach a decision itself or terminate the proceedings. In making this risk evaluation, information that is “objective, reliable, specific and properly updated” must be relied upon.
In its judgment in C-505/19, the Court extended the restrictions to the Member States’ use of Interpol Red Notices. In a case concerning a ne bis in idem violation and violation of the freedom of movement, the Court of Justice of the EU held that a) the mere possibility of a violation of the ne bis in idem principle is not enough to bar a preliminary arrest of the person in question. Only if it has been established “in a final judicial decision taken in a Contracting State or in a Member State” arrest and extradition are prohibited. The Court also held that it is not unlawful to process data in a Red Notice if the ne bis in idem principle may apply. If, however, it is established that the principle does apply and there are no grounds for a criminal process against the person, there is no longer basis for data processing and the person can legitimately require the Member State to erase the data on the Red Notice.
On all accounts, the Member State must effectively communicate the limitation in a note, thus making sure that the individual is not subjected to future arrests on the same grounds elsewhere.
Both within and outside the European Union, digital and professional network-based platforms are applied to facilitate the exchange of information across borders. Technically, European Union institutions have established digital software platforms to facilitate effective exchange of general and case specific information in the area of justice and security. Schengen Information System II, eEDeS (E-Evidence Digital Exchange System) , and e-Justice are important examples. The European Search Portal that provides a single point of entry to searching in several relevant databases simultaneously provides a strong case for a future platform.
Legally, all Member States may exchange information in their own capacities and can process personal data in Red Notices within the legal framework of the Law Enforcement Directive. To some extent the European Search Portal already provides legal and institutional mandate to some necessary data. However, several specific data needs further legal mandate and institutional framework for EU-institutions and EU Member States to share them.
Furthermore, effective exchange of information in the field of justice and security continue to require support from professional human-based networks. In the European area, the European Judicial Network is sigificant, establishing contact points in each Member State and integrating EU-based digital platforms.
Key recommendations
With regard to modelling an effective review and redress mechanism in Interpol for the future:
The European Parliament should call on the EU Commission to include the production of a forecast analysis and modelling that account for high volume cases and decentralised review & update process in the negotiations with Interpol as an area of collaboration.
With regard to procedural and substantive improvements (in prioritised order):
(1) the European Parliament could call on the EU Commission to include in the legal tools currently under development to support the European Arrest Warrant system, the processing of Red Notice requests. This should include step-by-step guidelines for all EU Member States on how to handle Red Notice requests (deciding on, communicating, updating, erasing, inserting notes).
(2) the European Parliament could call on the EU Commission to include in the negotiations with Interpol an item to have Interpol produce, update and make available procedural and substantive tools on the legal handling – including rights-based boundaries – of Red Notices, ensuring consistent and transparent processing of requests, reviews, challenges, corrections and deletions.
(3) the European Parliament could call on the EU Commission to include in the negotiations with Interpol an item to have Interpol produce yearly statistical data on processing of requests for Red Notices with data on country of request, criminal offence category, review outcome, reasons for denial, and the use of available sanctions against member countries. If this is not achieved, the European Parliament could call on the EU Commission to ensure that statistical data on EU Member States’ handling of requests for Red Notice arrests is developed for all Member States.
(4) based on the statistical data, the European Parliament could call on the EU Commission to include in the negotiations with Interpol an item to have Interpol develop public risk profiles of Red Notice requesting countries. This is necessary to evaluate the risk of abuse associated with the requesting countries and to evaluate the effectiveness of the enforcement mechanisms of Interpol.
(5) the European Parliament could call on the EU Commission to include a mechanism for EU to formulate and monitor the agenda of reform initiatives with regard to Red Notices, in the current negotiations for a collaboration agreement with Interpol.
Recommendations with regard to institutional support of platforms for exchange of necessary information:
Both digital platforms and professional human-based networks to facilitate the information exchange already exist. The most important actions are to support and further develop the proper functioning and synergies of these platforms. The European Search Portal provides an optimal starting point.
(1) the European Parliament could call on the EU Commission to further develop the legal and institutional framework of the European Search Portal to include a database on final judicial decisions related to existing Red Notices and prior decisions on arrest and extraditions related to an existing Red Notice, as well as a repository with relevant and updated human rights information on requesting countries.
(2) the European Parliament could call on the EU Commission to take the necessary steps to develop and administrate databases on final judicial decisions related to existing Red Notices, and prior decisions on arrest and extraditions related to an existing Red Notice, as well as a repository with relevant and updated human rights information on requesting countries.
(3) to support access and exchange of data, the European Parliament could call on the EU Commission to involve the European Judicial Network in the design of best practices when connecting to other authorities in Member States and when exchanging information concerning Red Notice warrants.
(4) the European Parliament could call on the EU Commission to establish an office to support the update of relevant data, the administration of the databases, and to coordinate the update and prepare procedural and legal guidelines to ensure fundamental rights of citizens going forward.
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